Attorney client and work product privileges became much more complicated in the electronic age. Not only was there significantly more data to review to determine whether privilege existed, but there were also a plethora of new ways to communicate—emails, text, social media, etc. These “new” issues raised by the electronic age caused heartburn for many lawyers. Following adoption of Federal Rule of Evidence 502, which expanded the protection provided by claw-back provisions, many lawyers breathed a sigh of relief, thinking they had a safety net that would allow them to avoid waiver issues associated with production of electronic data. While it’s true that the claw-back protections, expanded in scope in Federal Rule of Evidence 502, afford greater protection against inadvertent waiver, there are other traps awaiting the “information age” attorneys.
Trap 1: Work Email and Employer’s Electronic Communication Policies
Given the explosion of email usage in the last 10 years, it’s become commonplace to send and receive personal email from business email accounts. However, when you combine this with the widespread adoption of “employee electronic communications policies” (those pesky notifications along the lines of “all info placed on or set over this system may be monitored”), you can easily slip down the slope of privilege waiver due to failing the “made in confidence” requirement of attorney-client privilege claims. The courts in Alamar Ranch, LLC v. City of Boise and Holmes v. Petrovich Dev. Co., LLC ruled that communications between an attorney and client using the client’s employer-provided email system or via a company-issued computer were not protected by the attorney-client privilege because the person sending the email had no expectation of privacy/confidence. Specifically, the regular electronic notifications to the employee regarding the employer’s electronic communication policies removed any expectation of privacy on the employee’s part.
Trap 2: Accessing Personal Email Accounts on Employer Systems
The courts have taken a similar stand where employees use or access web-based personal email accounts on employer computers or across employer systems to communicate with their attorneys. In Stengart v. Loving Care Agency (a discrimination suit), the plaintiff (an employee) discussed the lawsuit with her attorney using a personal web-based email account on her work computer. The trial court found that the emails were not covered by the attorney-client privilege because the employer’s electronic communications policy stated that the emails would be viewed as company property. Although the trial court’s ruling was overturned on appeal, the lower court’s ruling was a warning shot across the bow to all attorneys regarding how, when and where you communicate with your clients.
Trap 3: Loose Lips (and Laptops) Sink Ships
The most obvious trap of the three is also the most prevalent. How many of us use cell phones, smart phones or laptops in public places such as commuter trains, airplanes, on the street, in coffee shops, malls or even the public lobby of your office-building? More than one attorney has fallen victim to talking about confidential information in a public location or having a “privileged email or memo” read by a seat-neighbor on a plane. The experience of a Pillsbury partner’s discussion of layoffs within the firm on a commuter train in 2009 is famous enough to merit a mention on Wikipedia, Above the Law and the other legal blogs (if you’ve not heard of it, just run a search for “Pillsbury 2009 layoffs”). Although not rising to the level of attorney-client privilege in the Pillsbury incident, how many of us have communicated with a client over a cell phone in a public location? Are you sure you never discussed attorney-client confidences where members of the public could overhear details of the conversation?
Before you relax, having assured yourself that you never crossed that line, consider the following story. I recently flew down to California on business. During the flight, while working on my laptop, I noticed that the person sitting across the aisle from me was working on his laptop. A few glances during the first half of the flight alerted me to the fact that he was an employee of one of my clients. Fortunately, I had not been working on confidential materials on my laptop, but it was a tangible reminder of the potential for damaging a client or your relationship with the client by failing to consider your surroundings when working on confidential information.
Constant Vigilance and Discretion Pay Off
Remembering these three tips can save you from embarrassing and potentially costly discovery-related mistakes.
- Unless absolutely necessary, don’t email your non-corporate clients at their work email address or at least remember not to discuss attorney-client privileged information.
- Remind your clients not to view or send emails containing privileged information via their personal email accounts on work computers.
- Finally, be aware of your surroundings when conducting business in public places. If in doubt don’t say it or write it where others can hear it or read it.
 Alamar Ranch, LLC v. City of Boise, 2009 WL 3669741 (D. Idaho Nov. 2, 2009)
 Stengart v. Loving Care Agency, 201 N.J.300, 990 A.2d 650 (N.J. 2010)